INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
JOHN CASEY LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EM[PLOYERS CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Flood
Employer Member: Mr Grier
Worker Member: Mr. Somers
1. Loss of payments due to unfair dismissal.
2. The dispute concerns a worker who commenced employment as a sales assistant on the 22nd April, 2002. She was on a six months probationary period. The worker was dismissed on the 5th March, 2003. The worker claimed that she was unfairly dismissed and on the 15th May, 2003 referred a complaint to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969. The worker agreed to be bound by the Court's recommendation. A Court hearing was held in Cork on the 8th October, 2003.
3. 1. The worker's contract of employment provides that, on completion of the six months probationary period, permanent employment was assured. The worker did not receive any written or verbal warnings regarding her performance. She received an excellent performance review in November, 2002.
2. The disciplinary procedure provides that in the case of an employee whose performance is unsatisfactory, Management can access the various Stages from 1 to 4. Management did not do so. The claimant was called into the office for what she thought was a performance review and advised that her performance was unsatisfactory. Management made reference to a number of minor incidents which had occurred months previously. She was then summarily dismissed.
3. The claimant seeks compensation as the appropriate form of redress. Her salary at the time of dismissal was €35,812 p.a. made up of basic pay, commission, and Christmas Bonus. The claimant is still owed €6,000 from commission on sales and €1,500 in respect of Christmas Bonus.
4. 1. Because the worker's performance was unsatisfactory during her probation period the Company decided to further extend it for another six months.She was afforded every opportunity to improve and reach the appropriate standards of performance. As her performance did not improve the Company decided to dismiss her during the extended probationary period.
2. The Company rejects the claimant's assertion that she incurred any loss of payment upon termination of her employment. The Company paid the worker her statutory entitlements and all compensation due to her.
3. The Company acted in a fair, reasonable manner at all times and in accordance with the procedures as set down in her contract of employment.
The Court in this case is faced with conflicting evidence on a wide range of issues. These include the discussions at the recruitment stage in relation to bonus payments, the actual probationary period, and the incidents of performance failure as outlined by the Company.
The claimant alleges that she had been called into the office on the 5th March and was summarily dismissed by the management. The management at this meeting made a number of allegations about her work performance, which she believed were merely created as a justification for dismissing her.
She claimed that she had been on six months probation but had then been made permanent by the Company at a meeting where the management had indicated that they were very satisfied with her performance. She went on to state that there had been no previous discussions with her about any shortcomings and that she was totally unaware of any problems until the day she was called into the office and dismissed. She further claimed that commission due to her from sales made had not been paid, nor had a Christmas Bonus promised on recruitment been paid.
The Union claimed that the claimant was given no notice, no representation and no appeal.
Management for its part produced a list of errors, which they stated had been brought to her notice, and that she had been warned on a number of occasions about her shortcomings in relation to the administration side of the job.
They acknowledged that she was excellent at sales and they had no issues with her sales ability but in terms of the necessary paper work and follow up there were major shortcomings, which had cost the Company money and customers.
They claimed that they had not made her permanent at the end of her six-month probationary period but had in fact extended her probation. Subsequently as she had not improved, they had decided to dismiss her.
In relation to the sales commission due to her they stated that as there was significant follow up work to be completed after a sale it would be wrong to give her this payment when she was not there to do this work. They categorically denied that they had promised her a Christmas Bonus on recruitment.
While the Company listed to the Court a range of matters on which they were dissatisfied, there are no indications or evidence that the claimant was ever informed of these or of the serious view the Company took of her alleged failures.
The claimant is adamant that at the meeting, at which the Company claims it extended her probation, she was given an excellent report and no one on the management side indicated to her that her probation was to be extended. The Company at the hearing stated that it had put a note on record when they had extended her probationary period but accepted that no copy was forwarded to the claimant.
The Court while accepting there are delays in getting bonus payments for sales made, and that she was not around to do the necessary follow up work, finds it difficult to accept that sales made by the claimant were not credited to her, even for part payment.
The Court finds the manner of the dismissal, summonsing her to a meeting without any warning about the seriousness of the situation and not offering her representation was grossly unfair and less than would be expected of a Company with good industrial relations procedures.
The claimant is adamant that she was summarily dismissed at the interview held on the 5th March and that she was then escorted off the premises. While the Company disputes the term "escorted" it is clear from the responses made at the hearing that from the time she left the office following the interview a member of management remained by her side until she left the premises.
It is hard to understand how there can be such a conflict in relation to whether the claimant was made permanent after six-month period, or had her probationary period extended. The Court notes that the Company claimed that they put a note on file in relation to the extension of her probation but accepted that they did not give the claimant any written notification.
On commission, the Court, while accepting that there are other elements attached to payment of the commission, apart from the sale, believes it to be unfair to hold back payment from the claimant because she had left the Company.
The Court is surprised, considering the claimant's negative work history as outlined by the Company, that her probationary period was extended after six months.
In relation to the dismissal the Court finds the method of dismissal to be totally unsatisfactory and unfair. It is not acceptable for the Company to send for an individual without indicating the seriousness of the meeting, without offering any representation, and then to summarily dismiss the person.
The Court, having considered all aspects of the case recommends that the employer pay the claimant €20,000 in compensation.
Signed on behalf of the Labour Court
20th October, 2003Chairman
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.